BADRI KHATIK Vs. NARAIN SINGH

JUDGEMENT

(1.) This is a defendant's second appeal against the judgment of the lower appellate Court, decreeing the plaintiffs suit in ejectment against the defendant- appellant. The subject-matter of dispute is a house within the municipal limits of the town of Gaya, and is subject to municipal assessment. The plaintiff started his suit on the allegation that the disputed house, had been acquired by his elder brother, Chhedi Singh, by purchase, and that at the time, the defendant's father was occupying the house as a tenant on a monthly rent of eight annas. He, however, vacated the house in the year 1339 and thereafter he died. Subsequent to that, the present defendant was introduced into the same house as a tenant in the year 1340 on a monthly rent of Re. 1. The defendant paid the settled rent for about a year or two, and then discontinued doing so, on which the plaintiff served him with a notice to quit on 3 May 1937.

(2.) In reply thereto the defendant set up a title in himself, and, therefore, the plaintiffs brought the suit to eject the defendant, claimed arrears of rent, and damages since the termination of the tenancy, on service of notice to quit. The defendant's story was that the house in dispute had been built by the defendant's uncle, Shama Khatik, and the lands, the house site, had been gifted to him by Chulhan Sahu who admittedly was the owner thereof. He further pleaded that the plaintiffs suit was barred by limitation, neither they nor their predecessor-in-title having ever been in possession within twelve years of the suit. They also set up a title by adverse possession.

(3.) The Munsif, who tried the suit in the first instance, came to a finding that the plaintiffs title to the disputed house including the site thereof was well proved. He had framed, on the pleadings before him, an issue as to limitation, which was in these terms: "Is the suit barred by limitation?" Before him, this issue of limitation was not pressed. He, therefore, granted the plaintiffs a decree for ejecting the defendant. He, however, found that the allegation of tenancy in year 1340 at a monthly rent of Re. 1 had not been established.